Houston County District Court File No. K502262
Considered and decided by Anderson, Presiding Judge, Stoneburner, Judge,
and Hudson, Judge.
1. A Wisconsin court's use of a subpoena, rather than a search warrant, to compel production of a blood plasma sample from a Wisconsin hospital where a driver was treated for injuries after a fatal accident that occurred in Minnesota, did not violate due process rights of the driver.
Implied consent to testing at the direction of a law enforcement officer does not waive a driver's physician-patient privilege under Minn. Stat. § 595.02, subd. 1(d) (2002), that prohibits disclosure of information, including a blood plasma sample and testing, acquired by a medical professional attending the driver.
The opinion of the court was delivered by: Stoneburner, Judge
Respondent Joseph Steven Heaney is charged with four counts of criminal vehicular operation resulting in death, and four counts of criminal vehicular operation resulting in substantial bodily harm, as a result of a one-car accident that occurred in Houston County. One passenger died at the scene of the accident and another passenger was seriously injured. The state appeals a district court order suppressing Heaney's blood plasma sample and test results on the sample subpoenaed from a Wisconsin hospital where Heaney was treated following the accident. We conclude that the district court erred by suppressing the sample for violation of due process because Heaney's due process rights were not violated when the Wisconsin court ordered production of the sample by subpoena rather than search warrant. But because the district court correctly concluded that the evidence is inadmissible under the Minnesota physician-patient privilege, we affirm the district court's exclusion of the evidence.
Respondent Heaney rolled his vehicle in Houston County causing the immediate death of one passenger and critical injuries to another passenger. A police officer arrived at the scene minutes after the accident and told Heaney that he detected the odor of an alcoholic beverage on Heaney's breath. Heaney told the officer that he had been driving, that it was his friend's birthday, and that they had consumed alcohol earlier in the evening. Heaney tested.101 on a PBT.
Heaney was transported by ambulance to the nearest appropriate medical center, which was in La Crosse, Wisconsin. Houston County police chief investigator Gary Eddy arrived at the hospital approximately an hour and forty-nine minutes after the estimated time of the accident. Ambulance personnel who had transported Heaney to the hospital told Eddy that they had noted the odor of alcohol on Heaney's breath, and that Heaney had told them he was the driver of the car.
Eddy spoke with Heaney a few minutes later. Heaney said he did not want to speak with the police about the accident at that time. Eddy read him the Minnesota Implied Consent Advisory form, including paragraph 3, which states, "Because I also have reason to believe you have violated the Criminal Vehicular Homicide or Injury Laws, a test will be taken with or without your consent." Eddy also read paragraphs 4 and 5 of the Advisory, advising Heaney of his right to speak to an attorney and that if a test is unreasonably delayed or refused, Heaney would be considered to have refused the test.
Heaney then asked to speak with an attorney. Because Heaney was being treated at the medical center, he was not able to speak with his attorney until two hours and nineteen minutes after the time of the accident. After speaking to his attorney, Heaney initially agreed to submit to Eddy's request for a blood test.
While Eddy was waiting for a laboratory technician to arrive to take the blood test, the attending physician told Eddy that a medical blood test had been obtained and that records of that test could be subpoenaed. The parties stipulated that Heaney's blood plasma tested by the medical center was collected an hour and twenty-five minutes after the accident. Prior to leaving the hospital, Eddy was shown documentation that testing of the sample taken from Heaney by hospital staff showed an alcohol concentration of.144.
When the laboratory technician arrived, Heaney refused to submit to a blood test and stated that he would take a urine test instead. The officer did not demand that Heaney give a blood sample.*fn1 Heaney gave a urine sample about three hours after the time of the accident.
The Minnesota Bureau of Criminal Apprehension subsequently tested the urine sample and reported an alcohol concentration of.08. The state contends that the type of extrapolation that can be made from a blood sample cannot be made from a urine sample to prove what Heaney's alcohol concentration would have been at the time of the accident.
Eddy subsequently gave the La Crosse County District Attorney's office a request for production of documents and a supporting affidavit, requesting an order requiring the medical center to produce Heaney's medical records, quality control documents for equipment used in treatment and testing related to the records, and the original blood plasma sample obtained from Heaney. A La Crosse County Deputy District Attorney obtained a "Subpoena for Documents, Sections 968.13 and 968.135," signed by the judge of La Crosse County Wisconsin Circuit Court, and an order, requiring production of the requested items. Eddy received the requested medical records by mail, including results of the alcohol concentration test, showing a "blood plasma alcohol concentration of.144." Eddy picked up the blood plasma sample from the medical center and delivered it to the BCA lab in St. Paul. The BCA test of the sample showed an alcohol concentration of.14.
The state charged Heaney with four counts of criminal vehicular operation resulting in death under Minn. Stat. § 609.21, subd. 1(1), subd. 1(2), subd. 1(3), and subd. 1(4) (2002), and four counts of criminal vehicular operation resulting in substantial bodily harm under Minn. Stat. § 609.21, subds. 2a(1), 2a(2)(i), 2a(3) and 2a(4) (2002). Several of the counts require the state to prove that Heaney had an alcohol concentration of.10 or more at the time of the ...